CYIL 2014

ZUZANA JAHODNÍKOVÁ – CYIL 5 ȍ2014Ȏ such as injunctions and lis pendens application, do seem to be commonly accepted, experience demonstrates that investment tribunals and other bodies deciding cases held in parallel have taken an ambiguous approach which is positioned somewhere between pursuing their jurisdiction and recognizing international standards. There could be criticism regarding the manner in which international and national law can disregard, or on the other hand battle, the existence of parallel proceedings: additionally, there can be long-running theoretical polemics led by numerous legal scholars; but one fact appears detached from all discussions. This is that globalization of the world economy and the international investment sphere, together with the fragmentation of international arbitration, seem to predict that the parallelism issue will continue to be one of the “hot topics” of arbitration which will raise new questions and hold the attentions of scholars and practitioners. Perhaps one of the solutions should be emphasis of the fact that investment, in particular foreign investment of large corporations with intricate corporate structures, should receive special attention from the tribunals and courts in the litigation process. As it was shown it is not an easy task to present a simple definition of parallel litigation. The possibility of offering multiple definitions is also one of the factors which increases the number of situations under which parallel proceedings may occur. This is emphasized also by the fact that the fragmentation of international law and in particular of international investment protection facilitates the possibility of commencing litigation in front of different fora. There are several instruments which are aimed at preventing parallel litigation. Some of them, instruments such as the New York Convention are seen as a mean which could is insufficient to fully deal with parallel proceedings because it does not provide for coordination between arbitration and court litigation”. However, their effectiveness would be increased by the incorporation of provisions on parallel proceedings which concern the determination of the competences to decide a dispute (e.g. the New York Convention). As the authors already highlighted some of the instruments (e.g. anti-suit injunctions) which have the credentials to be effective are, however, often criticized for their far reaching consequences on international public law and the fundamental principles of international arbitration. Another group of these instruments (e.g. consolidation) relies on the parties to reach an agreement of the parties to transfer their dispute to one forum or to suspend one of the proceedings. Perhaps in the future experiences of other legal orders could provide for more clear answers on how to tailor such instruments. The EU has taken steps concerning the preservation of a forum’s right to decide a dispute and the case law generated on the basis of its measures can be one of the incentives for the international arbitration community. The authors therefore arrive at the conclusion that an objective represented by the aim of improving international investment protection by means tackling parallel proceedings should be enhanced. In the end, all these developments point toward the control of abuse in the exercise of international jurisdiction 141 , and one can consider whether methods such 141 F. O. Vicuña, supra note 9, p.11. MILOŠ OLÍK

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